DOMA ruling will mean big changes for vets' same-sex spouses

Jun. 28, 2013 - 07:10AM
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Joan Darrah, right, who served nearly 30 years in the Navy and lived through the Sept. 11 attack on the Pentagon, and her spouse, Lynne Kennedy, pose for a photo June 27 at their home in Alexandria, Va. Just two years ago, gays were prevented from openly serving in the military. Now, with the Supreme Court ruling, same-sex spouses of gay veterans and service members will be able to share in their benefits. (Charles Dharapak / AP)

WASHINGTON — For Stewart Bornhoft, who completed two tours of duty in Vietnam, the Supreme Court’s decision granting federal benefits to married, same-sex couples means that he and his spouse, Stephen McNabb, can one day be buried together at Arlington National Cemetery.

For Joan Darrah, who served nearly 30 years in the Navy and lived through the 9/11 attack on the Pentagon, the decision means her spouse, Lynne Kennedy, can join her more generous, less expensive health plan.

Just two years ago, gays and lesbians were prevented from serving openly in the military. Now, with the Supreme Court ruling this week, same-sex spouses of gay veterans and service members will be able to share in their benefits.

The Williams Institute, a think tank at the UCLA School of Law, reports that 650,000 same-sex couples live in the United States and about 13 percent of those relationships include a veteran. The institute said it’s unknown how many of those estimated 85,000 relationships involve marriages. A dozen states and the District of Columbia allow gay marriage.

Same-sex spouses of military veterans now will be able to get help with college tuition and can be buried in a national cemetery. They also can get a monthly indemnity payment that compensates them for the death of the veteran. Meanwhile, veterans receive enhanced disability compensation for their injuries if they’re married, generally amounting to several thousands of dollars over the course of a lifetime.

But under the Defense of Marriage Act and the law covering Veterans Administration benefits, such extra assistance was unavailable to veterans who were part of a same-sex marriage. That all changed with the Supreme Court ruling Wednesday.

President Obama said he’s directed Attorney General Eric Holder to work with all members of the Cabinet to ensure that changes to benefits are implemented swiftly and smoothly.

David McKean, legal director at Outserve-SLDN, which provides legal counsel to gay and lesbian service members and veterans, said Congress may need to update the statute governing VA benefits because it stipulates that marriages are valid only if they are viewed as such by the state where the veteran lives. That means the current VA statute doesn’t recognize as valid a marriage that takes place between two residents of, say, Texas or Florida, even if the veteran has a marriage certificate from Massachusetts or Vermont.

Sen. Jeanne Shaheen, D-N.H., has introduced legislation that would liberalize the definition of spouse to include anyone whose marriage is considered valid in the state where it occurred.

After the court’s decision, Shaheen wrote letters to Defense Secretary Chuck Hagel and Veterans Affairs Secretary Eric Shinseki saying she hoped policies that “discriminate against loving, same-sex couples will no longer be enforced.”

“The sooner people can access benefits that should be available to them, the better for them and their families,” she said.

Testifying last month at a Senate hearing, the VA said it supported exempting the department from the Defense of Marriage Act, and that it supported the Shaheen bill.

Sen. Bernie Sanders, I-Vt., the chairman of the Senate Veterans’ Affairs Committee, said the panel would take up Shaheen’s bill next month if the VA cannot act on the Supreme Court’s decision without congressional legislation. “The ruling means that all men and women who served our country and their families must be treated fairly and equally,” Sanders said.

But Rep. Jeff Miller, R-Fla., the chairman of the House Veterans’ Affairs Committee, said he’s waiting for an analysis from the VA to determine how it will comply with the court’s ruling.

“Until VA’s review is complete, any talk of legislative actions in response to the Supreme Court’s ruling is premature,” he said.

Josh Taylor, a VA spokesman, said the department was reviewing relevant statutes and would try to implement any changes to benefits for veterans “swiftly and smoothly.”

In the days leading up to the Supreme Court’s decision, Bornhoft said he felt the nation he had served for 26 years was discriminating against him.

“There is not equal treatment. There is not equal protection. There is not equal support,” said Bornhoft, a resident of Bonita, Calif., who served in the Army and graduated from West Point in 1969.

After the ruling, Bornhoft said he wanted to read the ruling’s fine print before celebrating.

“I’m obviously in no hurry to get planted at Arlington Cemetery, but it’s very comforting to know that eventually Stephen could be there by my side, as he has been in life,” Bornhoft said.

Darrah, a resident of Alexandria, Va., said it’s been stunning to watch the country move from the “Don’t ask, don’t tell” policy on gays and lesbians serving in the military to having her marriage recognized, all in less than two years. She, too, hopes one day to be buried at Arlington with her spouse.

“Change is never fast enough, but I’m dumbfounded with how quickly the country has moved,” Darrah said. “I wanted it to happen. I never thought it could happen.”

Major veterans groups have been largely silent on the issue of extending benefits to married, same-sex veterans. One exception was Iraq and Afghanistan Veterans of America, which applauded the Supreme Court’s decision.

The financial gain from the Supreme Court’s decision could be significant for some veterans. For example, a veteran considered 100 percent disabled gets VA compensation amounting to $2,816 a month. A similarly disabled veteran with a spouse gets $2,973 — a difference of nearly $1,900 annually. In another example, a spouse of a veteran who died as a result of injuries or illness incurred while on active duty is eligible to receive at least $1,195 a month in indemnity compensation.

Under the Post-9/11 GI Bill, veterans can transfer to their spouse or children their unused educational benefits. The VA will pay the in-state tuition rates and fees for veterans attending public schools and up to $17,500 for veterans attending private schools.